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Judgment
Vinod K. Sharma, J.—The Petitioner has invoked the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, for issuance of a Writ in the nature of Certiorari, to quash the order dated 12.12.2007 passed by the Thasildhar, Karur / the third Respondent herein, under the provisions of the Tamil Nadu Patta Passbook Act, 1983.
The case of the Petitioner is that Periyasamy Gounder was the owner of the property, measuring 10.96 acres situated at S. No. 532/1 and 532/3, Authoor Village, Karur Taluk, Karur District. One Janaki Ammal, the daughter of the sister of Periyasamy Gounder''s first wife was adopted by him.
Periyasamy Gounder executed a registered Settlement Deed dated 27.12.1958, in favour of his adopted daughter and since then, Janaki Ammal is in possession and enjoyment of the property. Thereafter, Periyasamy Gounder married one Saraswathi as his second wife.
2.11 acres of land out of 10.96 acres of land, referred to above, was acquired by the Highways Department, and the remaining land was in possession of Janaki Ammal. The said Janaki Ammal thereafter executed a registered Settlement Deed in favour of her daughters viz., Thamilarasi and the Petitioner herein, on 22.04.1985, with respect to the land under her ownership.
The Petitioner and Thamilarasi sold 1.96 acres of land to one Sudhandhiramani by a registered Sale Deed dated 12.07.1990, thereby leaving land measuring 6.89 acres in the joint possession of the Petitioner and her sister.
The case of the Petitioner is that the land was standing in the name of Petitioner and her sister Thamilarasi vide Patta No. 909.
The Revenue Divisional Officer, Karur / second Respondent herein, issued a notice to the Petitioner and her sister regarding alteration of patta in respect of land under their possession. The Petitioner and her sister were also directed to appear before him on 05.09.2007.
The Petitioner produced necessary documents, before the second Respondent and the enquiry is said to be pending. The proceedings before the Revenue Divisional Officer, if any, are without jurisdiction as the RDO can only exercise appellate jurisdiction under the Act.
Further case of the Petitioner, is that the patta granted in their name was cancelled and entered in the name of the fourth Respondent viz., Angayarkanni.
The Petitioner sought information under the Right to Information Act regarding the passing of any order. In reply to the said application, the second Respondent informed the Petitioner, that on the basis of the enquiry, No. order was passed, as the suit in O.S. No. 138 of 2006 was pending on the file of the District Munsif Court, Karur.
Thereafter, the Petitioner sought information from the third Respondent, relating to change of entries in patta, in favour of the fourth Respondent. In reply, the Petitioner was informed that order dated 21.07.2008 has been passed deleting the name of the Petitioner and her sister from Patta No. 909, in respect of the land in S. No. 532/3 to an extent of 2.78.5 Hectares in Authoor Village, Karur Taluk, and that the name of the fourth Respondent stood included.
According to the Petitioner, the order has been passed on the basis of the legal opinion rendered by the learned Additional Government Pleader, Karur dated 12.12.2007, to the effect that patta could be granted in favour of Saraswathi, Muthusenathipathi and Angayarkanni, if they showed documents, that they were the heirs of deceased Periyasamy Gounder.
The impugned order is challenged on the ground, that it has been passed, without following the due process of law, as envisaged u/s 10 of the Tamil Nadu Patta Passbook Act 1983 and being in violation of principles of natural justice.
Allegations of mala fide have also been levelled against the third Respondent, but the person has not been impleaded by name, to controvert the allegations of mala fide.
The basis for mala fide allegation is that the order has been passed on the basis of the legal opinion obtained from the learned Additional Government Pleader.
It is not in dispute, that the order passed by the Thasildar, u/s 10 of the Tamil Nadu Patta Passbook Act 1983 is Appealable and thereafter, Statutory remedy of Revision is also available. Though the jurisdiction under Article 226 of the Constitution of India can be exercised, in spite of alternative remedy, but as a rule of discretion, the High Court normally refuses to entertain the writ, unless the Statutory remedy is not found to be equally efficacious or where the Petitioner is likely to suffer grave injustice if directed to the Statutory Appeal.
The learned Counsel for the Petitioner, placed reliance on the judgment of the Hon''ble Apex Court in State of H.P and Ors. v. Gujarat Ambuja Cement Ltd. and Anr. 2005 (6) S.C.C. 499 to contend, that the availability of alternative remedy is not a bar to entertain the writ petition, and that the writ petition be entertained, and decided on merits.
A reading of the said judgment of the Hon''ble Supreme Court shows, that general rule is that the Court should not exercise jurisdiction under Article 226 of the Constitution of India, when an alternative Statutory remedy is available, but when the High Court comes to the conclusion, that the Statutory remedy is not efficacious, then it can entertain the petition. The Hon''ble Supreme Court in the said case refused to reconsider the question regarding the availability of alternative remedy.
The facts in the case, thus are not applicable to the facts of this case. The Hon''ble Supreme Court has also not laid down, that the Hon''ble High Court should entertain writ petition, even if Statutory remedy of Appeal is available.
The learned Counsel for the Petitioner, thereafter, placed reliance on the decision of the Hon''ble Supreme Court in M.P. State Agro Industries Development Corporation Ltd. and Another Vs. Jahan Khan, wherein the Hon''ble Supreme Court was pleased to lay down as under:
... The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ Court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged....
The contention of the learned Counsel for the Petitioner, is that, as the impugned order is passed is in violation of principles of natural justice, the availability of alternative remedy cannot be a bar to exercise of the writ jurisdiction.
In the counter affidavit, the stand taken by the Respondents is that entries in the name of Petitioner and her sister were made without notice to the fourth Respondent. It is further pleaded, that the fourth Respondent filed a suit in O.S. No. 138 of 2006 for Mandatory Injunction to cancel the order dated 28.12.1995 passed by the third Respondent, directing to restore the original position in the revenue records.
The case of the fourth Respondent is that during the pendency of the said suit, legal opinion was sought, and it was on the basis of expert opinion that the impugned entries were made, which are subject to final decision in a pending Suit.
In the counter affidavit, it is however, not disputed that the impugned order has been passed without notice to the Petitioner. But, only ground is that even, the order dated 28.12.1995, was passed in violation of principles of natural justice.
A reading of the respective pleadings shows, that there are disputed facts and Civil Suit is also pending, the proceeding and order passed under Tamil Nadu Patta Pass Book Act, 1983, are subject to findings in the Civil Suit, therefore, it cannot be said that the Petitioner would suffer irreparable loss if the Petitioner is relegated to ordinary Statutory remedy. As already observed above, No. case is made out to exercise extra ordinary jurisdiction, in view of availability of alternative Statutory remedy of Appeal.
The entries of patta, in the name of the Petitioner and her sister are also challenged on the ground of violation of principles of natural justice. This writ raises disputed questions of facts, as the question of title is disputed by the Respondents. It is not possible for this Court to go into the disputed question of facts in writ jurisdiction.
Consequently, this writ petition is dismissed, due to availability of alternative Statutory remedy of Appeal. The view that this Court should normally not deviate from the general rule of relegating the Petitioner to alternative remedy, and then interfere under Article 226 of the Constitution can only be in exceptional cases, when a very strong case is made out, finds support from the following decisions of the Hon''ble Supreme Court:
Hindustan Steel Works Construction Ltd. and Another Vs. Hindustan Steel Works Construction Ltd., Employees Union, wherein it has been held as under:
In U.P. State Bridge Corporation Ltd. and Others Vs. U.P. Rajya Setu Nigam S. Karamchari Sangh, it was held that when the dispute relates to enforcement of a right or obligation under the statute and specific remedy is, therefore, provided under the statue, the High Court should not deviate from the general view and interfere under Article 226 except when a very strong case is made out for making a departure. The person who insists upon such remedy can avail of the process as provided under the statue. To same effect are the decisions in The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, , Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others, , Chandrakant Tukaram Nikam and Others Vs. Municipal Corporation of Ahmedabad and Another, and in Scooters India and Others Vs. Vijai E.V. Eldred, .
Shyam Kishore and others Vs. Municipal Corporation of Delhi and another, ;
Assistant Collector of Central Excise Vs. Jainson Hosiery Industries, ;
C.I.T. v. Ramendra Nath Ghosh, (1972) 4 SCC 379 wherein the Hon''ble Supreme Court was pleased to lay down that petition should not be allowed where the relevant statute provides an adequate alternative remedy;
Uttaranchal Forest Development Corpn. and Another Vs. Jabar Singh and Others, ;
S.K. Bhatia and Others Vs. State of Uttar Pradesh and Others, ; and
Sadhana Lodh Vs. National Insurance Company Ltd. and Another, .
However, keeping in view the fact, that the Petitioner was bonafidely prosecuting this writ petition before this Court, the Petitioner is given liberty to file an Appeal, within a period of thirty days of receipt of a certified copy of the order.
In case, the Appeal is filed, within thirty days as stipulated, it be treated to be filed within the period of limitation, and the Appellate Authority is directed to decide it on merits, in accordance with law.
30.The connected M.P.(MD) No. 1 of 2008 is closed.
No costs.